Justice Manual § 1-20.300

Some settlement agreements and consent decrees with state and local governmental entities may involve the use of a monitor. The Department has a significant interest in ensuring that the monitor selected is independent, highly qualified, and free of conflicts of interest.

Monitors serve a crucial role as an independent validator of a jurisdiction’s progress in implementing the reforms required by a settlement. They are generally selected after an extensive negotiation between the parties, with approval by the supervising federal court. Because they are officers of the court, monitors act as neutral arbiters of a jurisdiction’s compliance with a decree, a process that can increase the confidence the court and stakeholders have in the settlement process.

For consent decrees and settlement agreements involving governmental entities, the Department’s use of monitors has largely been confined to three types of cases brought by the Civil Rights Division and United States Attorneys’ offices: (1) pattern or practice matters involving unconstitutional or unlawful policing, pursuant to 34 U.S.C. § 12601; (2) cases addressing conditions at corrections or other public residential facilities under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997, and other statutes; and (3) lawsuits regarding the rights of people with disabilities pursuant to Title II of the American with Disabilities Act, 42 U.S.C. § 12132, et seq., and Olmstead v. L.C., 527 U.S. 581 (1999).

Because of the complexities involved in the Department’s law enforcement consent decrees, the following principles and recommendations were crafted specifically with monitorships of state and local law enforcement agencies in mind. However, in any given case, Department litigating components should consider whether these principles may also help ensure that monitorships are independent, highly qualified, and free of conflicts of interest.

Monitorships should be designed to minimize the cost to jurisdictions and to avoid any appearance of a conflict of interest. Consent decrees should include an annual cap on monitors’ fees. Monitorships should be structured to encourage the use of pro bono time or reduced rates, and Department attorneys should explore the use of partnerships with academic institutions and non-profit organizations. Department attorneys should also explore whether use of alternative fee arrangements may be appropriate. In addition, consent decrees should restrict the ability of individuals already serving as lead monitors for an existing decree from serving on other monitoring teams.

Monitors must be accountable to the court, the parties, and the public. Monitorship selection should be structured to collect public input. Consent decrees should include monitorship term limits of two or three years, which can be renewed through judicial evaluation and reappointment. Monitoring documents such as the monitoring plan, assessments, bills, and methodologies should be made publicly available.

Sustained, meaningful engagement with the community is critical to the success of a monitorship. During monitor selection, priority should be given to candidates who demonstrate project management experience and a willingness and ability to solicit stakeholder input, including from impacted communities, law enforcement, and victims of official misconduct. Once the monitoring team is in place, they must continually seek such input.

Monitoring must be structured to efficiently move jurisdictions into compliance. Consent decrees should provide for a hearing to assess termination after no more than five years, after which the monitored entity should be expressly invited to provide evidence to the court of the progress it has made and, if it chooses, to demonstrate that it can be released from the decree. Consent decrees and monitorships should be structured to encourage the use of partial termination provisions in decrees, and consent decrees and monitorships should be structured to transition monitoring responsibilities to the jurisdiction over time.

As described above in Section 1-20.100, the relevant Assistant Attorney General will generally handle approvals of monitorships, though that approval authority may be delegated to the United States Attorneys, generally on a case-by-case basis.

Department attorneys seeking approval to use a monitor in a case involving a state or local law enforcement agency should explain how the proposed monitorship complies with this guidance. Departure from this guidance is presumptively the type of “question of … policy presented” that “should receive the personal attention of the Deputy or Associate Attorney General, as appropriate.” See 28 C.F.R. § 0.160(d)(2).